(dissenting) :
The question presented here is whether the guarantee contained in the Fifth Amendment against double jeopardy should be absorbed by the Fourteenth Amendment so as to make it applicable to state prosecutions. If the answer be yes, then the full scope of that guarantee as interpreted by the federal courts is applicable to the states. Malloy v. Hogan, 378 U.S. 1, 10, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).
Many state prosecutions have been challenged in the Supreme Court as viola-tive of the guarantee against double jeopardy, but in none of these has the plea been sustained. These cases are all referred to in the majority opinion.
The leading authority on the subject is Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 283 (1937). Palko presented a much stronger factual case for a determination contrary to the one reached by the Court than is presented here. Palko had been convicted of the crime of murder in the second degree on an indictment charging murder in the first degree. A sentence of life imprisonment was imposed. After reversal Palko was retried and convicted of murder in the first degree and sentenced to death. The clear refusal by the Court to find an invasion of Palko’s guarantee against double jeopardy, as provided by the Fifth Amendment, allowed the death penalty to stand.
Hetenyi claims that he should have been retried only on a charge of second degree murder. The first retrial resulted in a verdict of guilty of murder in the first degree, but upon reversal and a second retrial he was found guilty *868of second degree murder, for which crime he is now incarcerated.
It may well be that, in view of the recent decisions of the Court (Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 168, 6 L.Ed.2d 1081 (1961), search and seizure; Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), cruel and unusual punishment; Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), right to counsel; Malloy v. Hogan, supra, self-incrimination; Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), right to confrontation), either the test enunciated in Palko or the holding of constitutionality of the Connecticut statute involved therein will be overruled. But see the concurring opinions of Mr. Justice Harlan and Mr. Justice Goldberg in Pointer v. Texas, supra. However, the incorporation of guarantees of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment at the expense of departing from several long-standing Supreme Court decisions is a step which should only be taken by that Court.
The order should be affirmed.